Citation Nr: 9835469
Decision Date: 12/02/98 Archive Date: 12/15/98
DOCKET NO. 95-10 412 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for stiff man’s
syndrome.
2. Entitlement to an increased rating for hypertension,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C.L. Mason, Associate Counsel
INTRODUCTION
The veteran had active service from August 1980 to April
1990.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decisions of the North Little
Rock, Arkansas, Regional Office (RO) denying an increased
rating for the veteran’s hypertension and entitlement to
service connection for a neurological disorder identified
stiff man’s syndrome.
REMAND
The veteran asserts on appeal that service connection is
warranted for stiff man’s syndrome as the symptoms were first
noted during active service. In reviewing the claims file,
the Board observes that in 1996, the Social Security
Administration (SSA) awarded the veteran disability benefits.
However, it does not appear that the RO obtained all the
veteran’s records from SSA concerning this award.
Accordingly, a remand to obtain all records held by SSA
pertaining to the veteran is in order. See Murincsak v.
Derwinski, 2 Vet. App. 363, 372 (1992) (duty to assist
includes obtaining records from SSA and giving appropriate
consideration and weight to such evidence in determining
whether to award or deny VA disability compensation
benefits). The duty to assist is particularly applicable to
records held by agencies of the Federal Government. See
Counts v. Brown, 6 Vet. App. 473 (1994).
The Board further observes that the veteran was last afforded
a VA examination for compensation purposes in July 1997.
However, in light of the fact that the claim is being
remanded to obtain additional records, and it appears that
the veteran might have received additional treatment after
1997, the Board believes that another examination would be
appropriate. The Court has held that the VA's statutory duty
to assist the veteran includes the duty to conduct a thorough
and contemporaneous examination so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
Accordingly, this case is REMANDED for the following actions:
1. The RO should contact the SSA for the
purpose of obtaining any records from
that agency which pertain to the award of
disability benefits to the veteran. The
RO should obtain copies of award
letters/notices, administrative/appellate
decisions, hearing transcripts, if
necessary, and any additional medical
records relied upon concerning
claims/appeals filed by the veteran for
SSA disability benefits. The RO should
proceed with all reasonable follow-up
referrals that may be indicated by the
inquiry. All attempts to obtain records,
which are ultimately unsuccessful, should
be documented in the claims folder.
2. The RO should request from the
veteran a list with the names of all VA
and/or private doctors and/or health care
facilities where he has been treated for
his hypertension since the last VA
compensation examination was conducted.
The RO should obtain all medical records
from all the sources reported by the
veteran. The Board is particularly
interested in all the records of any
treatment afforded to the veteran at VA
facilities. If private treatment is
reported and those records are not
obtained, the veteran and his
representative should be provided with
information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1998). All the records obtained should
be made part of the claims folder.
3. The RO should subsequently schedule
the veteran for a VA compensation
examination to determine the extent and
severity of his hypertension. All
appropriate diagnostic tests and studies
deemed necessary by the examiner should
be conducted. All pertinent
symptomatology and medical findings
should be reported in detail. A series
of blood pressure readings should be
taken on at least three different days.
The examiner should also indicate whether
continuous medication is necessary for
control of the veteran’s hypertension.
In that the examination is to be
conducted for compensation rather than
for treatment purposes, the physician
should be advised to address the
impairment of the veteran’s hypertensive
disorder in correlation with the criteria
set forth in the VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4, Code 7101
(1998). The physician should be provided
with a copy of the applicable rating
criteria. The claims folder and a copy
of this remand must be made available to
and reviewed by the examining physician
in conjunction with the requested
examination.
4. The veteran must be given adequate
notice of the requested examination, and
he is hereby advised that pursuant to
38 C.F.R. § 3.655 (1998), when a claimant
without good cause fails to report for
examination, the claim will be denied.
If he fails to report for the requested
examination, that fact should be
documented in the claims folder. A copy
of all notifications must also be
associated with the claims folder. The
veteran is also placed on notice that he
has a duty to submit evidence of a
well-grounded claim for service
connection.
5. Subsequently, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full.
Specific attention is directed to the
examination report to ensure that it is
in compliance with the directives of this
REMAND. If the report is deficient in
any manner it must be returned to the
examiner for corrective action. 38
C.F.R. § 4.2 (1998); See also Stegall v.
West, 11 Vet.App. 268 (1998).
6. After completion of the above, the RO
should readjudicate the issues on appeal
with consideration given to all of the
evidence of record, including any
additional medical evidence obtained by
the RO pursuant to this remand. The
readjudication of the claims should
include RO’s consideration of referring
the case for extraschedular evaluation
under 38 C.F.R. § 3.321.
7. While this case is in remand status,
the veteran and his representative may
submit additional evidence and argument
on the appealed issues. Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992);
Booth v. Brown, 8 Vet. App. 109, 112
(1995).
Thereafter, if the decisions remain adverse to the veteran,
he and his representative should be furnished a supplemental
statement of the case and afforded a reasonable period of
time within which to respond thereto. Then, the claims
folder, if in order, should be returned to the Board for
further appellate consideration. The veteran need take no
action until he is so informed. The purpose of this REMAND
is to obtain additional information.
The veteran’s claim must be afforded expeditious treatment by
the RO. The law requires that all claims that are remanded
by the Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See the Veterans’ Benefits Improvement Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and 38
U.S.C.A. § 5101 (West 1991 and Supp. 1998) (Historical and
Statutory Notes). In addition, the Veterans Benefits
Administration’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO is to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV. Paras. 8.44-8.45 and 38.02-38.03.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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